McNeil et al v. Riente et al

Filing 13

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 12 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks' August 17, 2018 Order and Report- Recommendation is ADOPTED in its entirety; and the Court further ORDERS that Plaintiffs' Complaint is DISMISSED WITHOUT LEAVE TO AMEND; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor without further order of this Court and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 10/9/2018. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JEFFREY McNEIL and ALISSA McNEIL,
Plaintiffs,
vs.

6:18-cv-0631
(MAD/TWD)

HCDSS and SARAH RIENTE,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

JEFFERY McNEIL
239 William Street
Upstairs Apartment
Herkimer, New York 13350
Plaintiff Pro Se
ALISSA McNEIL
239 William Street
Upstairs Apartment
Herkimer, New York 13350
Plaintiff Pro Se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs Jeffrey McNeil and Alissa McNeil commenced this action pro se on May 31,
2018 against Herkimer County Department of Social Services ("HCDDS") and Sarah Riente, a
HCDSS case worker, pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. Additionally, Plaintiffs
requested to proceed in forma pauperis ("IFP"). See Dkt. No. 2.
On August 17, 2018, Magistrate Judge Thérèse Wiley Dancks issued an Order and
Report-Recommendation granting Plaintiffs' IFP application for purposes of filing and
recommending that the Complaint be sua sponte dismissed without prejudice and without leave to

amend. See Dkt. No. 12. Plaintiffs did not file any objections to the Order and ReportRecommendation.
II. DISCUSSION
A.

Lack of Objections
When a party files specific objections to a magistrate judge's report-recommendation, the

district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
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that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
In the present matter, Magistrate Judge Dancks provided Plaintiffs adequate notice that
they were required to file any objections to the Order and Report-Recommendation, and
specifically informed Plaintiffs that failure to object to any portion of the report would preclude
their right to appellate review. See Dkt. No. 12 at 19. Specifically, Magistrate Judge Dancks
informed Plaintiffs that "FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir.
1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a)." See id. Magistrate Judge Dancks
clearly provided Plaintiffs with sufficient notice of the consequences of failing to object to the
Order and Report-Recommendation.
B.

Analysis of the Order and Report-Recommendation
The Court agrees with the Magistrate Judge Dancks' recommendation to dismiss the

Complaint. To survive dismissal for failure to state a claim, a party need only present a claim that
is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). While Rule 8(a) of the Federal Rules of Civil
Procedure, which sets forth the general rules of pleading, "does not require detailed factual
allegations, . . . it demands more than an unadorned" recitation of the alleged misconduct. Id.
(citations and quotation omitted). In determining whether a complaint states a claim upon which
relief may be granted, "the court must accept the material facts alleged in the complaint as true
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and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d
133, 136 (2d Cir. 1994) (citation omitted). However, "the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at
678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. (citation omitted).
Plaintiffs allege vague claims about due process violations, the First and Fourth
Amendments, discrimination, verbal threats, and criminal law offenses. See Dkt. No. 1 at ¶ 5;
Dkt No. 1-1 at § VI. Even under a very liberal reading of the Complaint, the Complaint does not
actually describe any conduct that has violated Plaintiffs' rights. See Dkt. No. 12 at 11. Simply
put, Plaintiffs have failed to adequately allege any facts that may support their legal claims.
1. Injunctive Relief
Magistrate Judge Dancks recommended that the Court abstain from exercising subject
matter jurisdiction over Plaintiffs' requests for "pre injunctive relief" per the Younger abstention
doctrine. See Dkt. No. 1 at ¶ 5; Dkt. No. 12 at 7. Since this case clearly implicates the state's
interest in a Family Court proceeding, the Court agrees that Younger abstention is appropriate.
See Moore v. Sims, 442 U.S. 415, 435 (1979) (applying Younger abstention where state-initiated
custody proceedings are pending).
2. Section 1983 Claims
Plaintiffs have made several claims under 42 U.S.C. § 1983, which Congress established
as "a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the
Constitution and law' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F.
Supp. 537, 573 (S.D.N.Y. 1995). This Court finds no error with Order and ReportRecommendation's analysis of each of these claims.
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First, the Court agrees that Plaintiffs have not adequately pleaded a due process violation.
Plaintiffs vaguely allege that Defendants have "infringed upon" their "fundamental liberty interest
in the care, custody and control [of their] children . . . without due processing [sic]." See Dkt. No.
1 at ¶ 6. However, they "have not alleged that Defendants interrupted their parental custody in
any way whatsoever," so their procedural and substantive due process claims must fail. See Dkt.
No. 12 at 10-13; see also Brennan v. Cty. of Broome, No. 09-cv-677, 2011 WL 2174503,*8-9
(N.D.N.Y. June 2, 2011) (holding that there is no procedural violation where the state did not
remove the child from his parent's custody); Oglesby v. Eikszta, 499 Fed. Appx. 57, 60-61 (2d
Cir. 2012) (holding that there is no substantive due process violation where the parents never lost
custody).
Second, the Court agrees with Magistrate Judge Dancks that the Complaint does not allege
a violation of Plaintiffs' First Amendment rights, despite a reference to the First Amendment on
the civil cover sheet. See Dkt. No. 12 at 13.
Additionally, Plaintiffs' Fourth Amendment claim fails because "[a] Fourth Amendment
child-seizure claim belongs only to the child, not to the parent . . . " Southerland v. City of New
York, 680 F.3d 127, 143 (2d Cir. 2012) (citation omitted). Plaintiffs may not make this claim on
behalf of their child. See e.g., Armatas v. Maroulleti, 484 Fed. Appx. 576, 577–78 (2d Cir. 2012)
(holding that a non-attorney plaintiff proceeding pro se may not represent the interests of a minor
child); see also Dkt. No. 12 at 14 n.6. Furthermore, no "seizure" of the child has been alleged.
See id. at 14. Plaintiffs' general allegations that "the worker is discriminating against me and my
family," "going against the (HiPPA Law1) releasing information," and "made bias action because

We assume, as did Magistrate Judge Dancks, that Plaintiffs are referring to the Health
Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d-6.
1

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of my race" are merely conclusory statements that do not amount to actionable discrimination.
See Dkt. No. 12 at 14. Likewise, Plaintiffs' vague allegation that Defendants "threatened us" is
not actionable under § 1983. See id. at 15.
To the extent the Complaint alleges two criminal offenses, the Court agrees with the Order
and Report-Recommendation that there is absolutely no private right of action to enforce either
state or federal criminal statutes. See id. at 15-16.
Finally, since the Complaint fails to suggest any sort of custom, policy, or practice of
HCDSS or Herkimer County contributing to a constitutional violation, the Court agrees with the
Order and Report-Recommendation that the claims against the municipality must be dismissed.
See id. at 16-17.
D.

No Opportunity to Amend
When a pro se complaint fails to state a cause of action, the court generally "should not

dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (internal quotation and citations omitted). Of course, an opportunity to amend is
not required where "[t]he problem with [the plaintiff's] cause of action is substantive" such that
"better pleading will not cure it." Id. (citation omitted). Furthermore, "[w]here granting leave to
amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to amend."
Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (collecting cases).
Here, better pleading will not cure Plaintiffs' claims. Therefore, the Court agrees with
Magistrate Judge Dancks' recommendation to dismiss the Complaint without leave to amend.
III. CONCLUSION

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Upon a review of the Order and Report-Recommendation, and considering that the parties
have failed to object to any of Magistrate Judge Dancks' thorough and well-reasoned
recommendations, the Court finds no clear error in Magistrate Judge Dancks' recommendations
and hereby affirms and adopts the Order and Report-Recommendation as the opinion of the
Court. Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' August 17, 2018 Order and ReportRecommendation is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiffs' Complaint is DISMISSED WITHOUT LEAVE TO AMEND;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor without
further order of this Court and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October 9, 2018
Albany, New York

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